HomeMy WebLinkAboutAgenda - 02-12-1996 - X-A 1
t 1
ORANGECOUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date:February 5, 1996
Action Agenda
Item#�---16
SUBJECT: ADVERTISEMENT FOR PUBLIC HEARING-FEBRUARY 26, 1996
DEPARTMENT: PLANNING PUBLIC HEARING: Yes X No
BUDGET AMENDMENT REQUIRED: Yes X No
ATTACHMENT(S): INFORMATION CONTACT:
Proposed Public Hearing Items Planning Director-Extension 2592
Proposed Public Hearing Notice
TELEPHONE NUMBERS:
Hillsborough 732-8181
Durham 688-7331
Mebane 227-2031
Chapel Hill 967-9251
PURPOSE: To consider the advertisement for the February 26, 1996 quarterly public hearing.
BACKGROUND: The next regular quarterly public hearing is scheduled for February 26, 1996. The Board
of Commissioners reviews proposals to be considered at public hearing for consistency
with general County policy and presentation format.
A summary of each item proposed for public hearing is provided below. The proposed
legal advertisement, the text of proposed ordinance amendments, and other background
information are also provided.
PUBLIC SCHOOL IMPACT FEES
• Educational Facilities Impact Fee Ordinance
Two minor amendments are proposed: (1) to allow public school impact fees to be
used to convert existing buildings into new public school space where the
improvement is related to new residential growth; and(2)to clarify that dedication
of a public school site may qualify the landowner. not the developer, for a credit
against payment of public school impact fees.
COMPREHENSIVE PLAN AMENDMENTS
• Historic Preservation Element of the Comprehensive Plan
The Historic Preservation Element of the Orange County Comprehensive Plan will
function both as a component of the Comprehensive Plan and as a stand-alone
document intended to guide the County's historic preservation activities. The
Preservation Element provides an outline of goals, objectives, and action strategies
that will serve as a program of work for the Orange County Historic Preservation
Commission. A report on the Historic Preservation Element was presented to the
Board at its January 16 meeting. Copies of the study were presented to the Board at
that time.
2
ZONING ATLAS AMENDMENTS
• Z-1-96 Schley Community Store and Flea Market
The rezoning of .82 acre owned by Bobby and Lydia Crawford from AR
Agricultural Residential to EC-5 Existing Commercial is proposed to correct an
error in the Zoning Atlas. The property is located on the west side of NC 57 about
1000 feet north of Walker Road. Commercial use of the property existed at the time
of the initial zoning of Cedar Grove Township on January 1, 1994.
ZONING ORDINANCE TEXT AMENDMENTS
• Temporary Events
The proposed amendment would create a new commercial land use category to
allow temporary commercial events such as craft shows, carnivals, festivals,
concerts, etc. that do not typically involve permanent strictures and do not exceed
seven(7)days in a thirty(30)-day period or fifty(50)days per year.
• Variances for Off-site Septic Easements in Protected Watersheds
The proposed amendment would authorize the Board of Adjustment to grant
variances to allow the use of septic easements in water supply watersheds.
• Special Uses
The proposed amendment, initiated by the County Attorney, would: (1) clarify
certain conditions under which a Special Use Permit would become null and void;
(2) clarify conditions under which a Special Use Permit would expire; and (3)
eliminate the requirement that Board action on a Special Use Permit include a
summary of evidence.
• Violations,Penalties,and Remedies
The proposed amendment would raise the maximum fine for criminal violation of
the Zoning Ordinance from$50 to$500.
SUBDIVISION REGULATIONS TEXT AMENDMENTS
•
Dedication/Payment-in-Lien Provisions
The proposed amendment will substitute a payment-in-lieu based on the cost of land
and facilities associated with implementing a system of community and district
parks. Currently, the payment-in-lieu includes only the value of land, as based on
the assessed value listed in the Orange County Tax Office. Attachments concerning
this item will be distributed separately.
Approval of the notice will permit staff to advertise in compliance with the N.C. General
Statutes;e.g.,on February 14 and 21 in the News of Orange, and on February 15 and 22
in the Chapel Hill Herald The notice must be mailed to adjoining property owners by
February 9.
RECOMMENDATION: The Administration recommends approval of the advertisement for public hearing on
February 26, 1996.
3
NOTICE OF PUBLIC HEARING
ORANGE COUNTY BOARD OF COMMISSIONERS
A public hearing will be held in the Superior Courtroom of the Orange County Courthouse (New), 106 East
Margaret Lane, Hillsborough, North Carolina, on Monday, February 26, 1996 at 7:30 p.m. for the purpose of
giving all interested citizens an opportunity to speak for or against the following items:
EDUCATIONAL FACILITIES IMPACT FEE ORDINANCE
1. AMEND SECTION 5-C, LMUTATION ON EXPENDITURE OF FUNDS, to clarify that public school
impact fees may be used to convert existing buildings into new public school space.
2. AMEND SECTION 6, CREDITS, to clarify that dedication of a public school site may qualify the
landowner,not the developer,for a credit against payment of public school impact fees.
ORANGE COUNTY COMPREHENSIVE PLAN AMENDMENTS
1. CP-1-96 Historic Preservation Element
AMEND the Orange County Comprehensive Plan to include the Historic Preservation Element to serve as
a guide to activities related to preserving the county's historic architectural and archeological resources.
The Historic Preservation Element describes Orange County's historical development, assesses the status
of historical resources, and outlines the historic preservation efforts that are currently underway; outlines
the goals and objectives for a countywide historic preservation program;and lists specific action strategies
for accomplishing the goals,including,but not limited to, generating a list of priority sites to nominate to
the National Register of Historic Places, developing a program to designate County historic landmarks,
undertaking a study to determine the economic benefits of historic preservation, and organizing a public
education campaign for historic preservation activities. The Element also features case studies that
describe an approach to delineating historic landscape boundaries.
ORANGE COUNTY ZONING ATLAS AMENDMENTS
1. Z-1-%Schley Community Store and Flea Market
REVISE the Orange County Zoning Atlas to rezone 0.82 acres owned by Bobby and Lydia Crawford from
AR-Agricultural Residential to EC-5 Existing Commercial. The property is located on the west side of
N.C. Highway 57 about 1000 feet north of Walker Road, and is known as parcel 2.47..9. The rezoning
request is intended to correct an error in the Zoning Atlas. Commercial use of the property for a flea
market existed at the time of the initial zoning of Cedar Grove Township on January 1, 1994.
ORANGE COUNTY ZONING ORDINANCE TEXT AMENDMENTS
1. Temporary Events
• AMEND ARTICLE 22 DEFINITIONS to create a new definition entitled "Temporary Events" to
apply to temporary commercial events such as craft shows, carnivals, festivals, and concerts that do
not typically involve permanent structures and do not exceed seven (7) days in a thirty (30)-day
period,or fifty(50)days per year.
• AMEND ARTICLE 4.3 PERMITTED USE TABLE to allow Temporary Events expected to attract
fewer than 300 participants as a use permitted by right in all commercial districts, and in all
residential districts upon approval of a Class B Special Use Permit. In both residential and
4
commercial districts, Temporary Events expected to attract 300 or more persons would require
approval of a Class A Special Use Permit.
• ADD ARTICLE 8.8.14 SPECIAL USES - TEMPORARY EVENTS to create application
requirements and standards of evaluation for the approval of a Special Use Permit for a Temporary
Event.
• ADD ARTICLE 6.16.17 ADDITIONAL REQUIREMENTS FOR CERTAIN PERMITTED USES -
TEMPORARY EVENTS to create standards of evaluation for the approval of site plans and Zoning
Compliance Permits for Temporary Events.
2. Variances for Off-Site Septic Easements in Protected Watersheds
AMEND ARTICLE 6.23..11 WATERSHED PROTECTION OVERLAY DISTRICTS -
ADMINISTRATION to authorize the Board of Adjustment to grant variances to allow the use of septic
easements in water supply watersheds.
3. Special Uses
AMEND ARTICLE 8 SPECIAL USES to clarify the conditions under which a Special Use Permit would
become null and void; clarify the conditions under which a Special Use Permit would expire; and
eliminate the requirement that Board of Commissioners' action on a Special Use Permit include a
summary of evidence.
4. Violations
AMEND ARTICLE 23 VIOLATIONS, PENALTIES, AND REMEDIES to raise the maximum fine for
criminal violation of the Zoning Ordinance from$50 to$500.
ORANGE COUNTY SUBDIVISION REGULATIONS TEXT AMENDMENTS
1. Dedication/Payment-in-Lieu Provisions
AMEND SECTION IV-B-7-b RECREATION SITES to substitute a payment-in-lieu based on the cost of
land and facilities associated with implementing a system of community and district parks. Currently, the
payment-in-lieu includes only the value of land, and is based on the assessed value listed in the Orange
County Tax Office. The average payment-in-lieu per household is presently $76. Under the proposed
system,the payment-in-lieu would not exceed$330 per household-
The specific text amendments proposed as described in this notice are available for public inspection at the Orange
County Planning Department.
All interested citizens are invited to attend this hearing and be heard. Public comment will be received during the
public hearing. Following the close of the public hearing, only evidence received in writing by the date of the
Planning Board meeting following the public hearing will be considered by the Board of Commissioners for
decision.
Changes may be made in the advertised proposals which reflect debate,objections and discussion at the
hearing.
Questions regarding the proposals may be directed to the Orange County Planning Department located in the
Planning and Agricultural Center, 306F Revere Road, Hillsborough, North Carolina. Office hours are from 8:00
a.m. to 5:00 p.m. Monday through Friday. You may also call 732-8181 (Hillsborough), 688-7331 (Durham), 967-
. 5
9251 (Chapel Hill-Carrboro)or 227-2031 (Mebane/Graham). Please ask for extension 2575 or 2585. You will be
directed to a staff member who will answer your questions.
Marvin Collins,Planning Director
PUBLISH: News of Orange Chanel Hill Herald
February 14, 19% February 15. 1996
February 21, 1996 February 22, 1996
6 ,
PROPOSED ORDINANCE/PLAN AMENDMENT
ORDINANCE/PLAN: EDUCATIONAL FACILITIES IMPACT FEE ORDINANCE
REFERENCE: Section 5-C Limitation on Expenditure of Funds
Section 6 Credits
ORIGIN OF AMENDMENT: X Staff Planning Board X BOCC Citizen
X Other: County Attorney
STAFF PRIORITY RECOMMENDATION: X High Middle Low
PUBLIC HEARING DATE: February 26, 1996
PURPOSE OF AMENDMENT: To amend the Educational Facilities Impact Fee Ordinance to
clarify the intent governing situations where existing buildings are converted to new public school
space and where a land owner donates land for a public school site.
IMPACTSASSUES: The rationale for the proposed amendments to the Educational Facilities Impact
Fee Ordinance is explained in the attached correspondence from the County Attorney.
EXISTING/PROPOSED ORDINANCE/PLAN PROVISIONS:
Applicable sections of the ordinance are shown below. Text to be deleted is shown in st6ketkeugh
highlighting, while new wording is shown in boldface italics type.
Section 5-Collection of Fees
C. Limitation on Expenditure of Funds
Funds withdrawn from public school impact fee trust accounts shall be used solely in accordance
with the following provisions:
1. Funds shall be used for capital costs associated with the construction of new public school
space, including new buildings, er additions to existing buildings or otherwise converting
existing buildings into new public school space where the expansion is related to new
residential growth. Such capital costs include actual building construction; design,
engineering, and/or legal fees; land acquisition and site development; equipment and
furnishings;infrastructure improvements;and/or debt service payments and payments under
leases through which to finance such costs.
2. Funds shall be used exclusively for capital improvements within the benefit area from which
the funds were collected.
7
3. Funds may be used for providing reimbursements as permitted in Section 5.E.
4. No funds shall be used for public school operating expenses, periodic or routine
maintenance,or the administration of this public school impact fee program.
5. Following their collection, funds shall be expended within ten (10) years, the time frame
coinciding with the public school facilities capital improvements program (CIP) school
impact fee period.
The disbursal of public school impact fee funds shall require the approval of the Board of County
Commissioners upon recommendation of the County Manager.
Section 6-Credits
Any conveyance of land for a public school site or construction of new school facilities received and
accepted by Orange County, a municipality located in Orange County, and/or the Orange County or Chapel
Hill-Canboro School Board from a dvveleg landowner may, at the election of the landowner, be
credited against the public school impact fee due if the conveyance or construction meets the same needs as
the public school impact fee in providing new public school facilities. If the de-+eleper-des landowner
elects to receive credit against the amount of the public school impact fee due for such conveyance or
construction, the develeper- landowner shall, prior to the agreement to convey land for or construct new
public school facilities, or the conveyance of land for or construction of new school facilities, enter into a
fee agreement with the County. The fee agreement shall provide for the establishment of credits and
payment of the fee in a specified manner and time,and shall, upon its execution by the landowner and the
County, be binding upon the heirs and assigns of the landowner.
The value of land conveyed or facilities constructed by a deMepeF landowner and accepted by the
County, municipality or school board for purposes of this section shall be determined by an appraisal based
on the fair market value of the land or facilities as established by the County. Construction shall be in
accordance with applicable County,municipal, school board,andAw State standards. Any land conveyed for
credit under this section shall be conveyed no later than the time at which public school impact fees are
required to be paid. The portion of the public school impact fee represented by a credit for construction
shall be deemed paid when the construction is completed and accepted for maintenance or when adequate
security for the completion of the construction has been provided.
ORDINANCE REVIEW COMMITTEE:
PLANNING BOARD REVIEW:
BOARD OF COMMISSIONERS REVIEW:
8 '
LAW OFRCE
COLEMAN, GLEDHILL & HARGRAVE ALONZO LWWN4MAV1AN.)A.
A MOFESSMAt CORPORAMON Gwyn sr L GIUM L
POWAAs HAPPRAW
229 E.TRYON SSRFi7 KIM K SMAi
!.O.DRAWU 1524
HIlSSBOROMij.NORTH CAROLINA 27276 )+WET 8.
019)232.1196 DOUGLAS P.
December 8, 1995 SAMUEL RLY atY�7�w[v
mr, John M. Link, Jr. i
orange County Manager
pos$,.Office Box 8161
Hillsborough, North Carolina 27278
RB:; Impact Fees - Renovations to Hillsborough Slemeiitary
School (old Stanback Kiddle School)
School Capital B=pense in the Chapel Hill-Carrbdio
School System with the Supplemental! District Taf
Dear John:
I have reviewed your proposed letter to William Harrison and
the enclosed memorandum from Sally Kost to me about the p:rospecxts
of using the impact fee collected within the Orange Count ISchaol
System for use in putting into service the old Stanback Middle '
School for use during the next school year as an element a
school. In orderto make the existing school usable as the new
Hillsborough Elementary School it will require new furnishings, a
media center and changes to stairwells and restrooms. As J
? understand it, the plan to use the new Hillsborough Eleme4�a
School could eliminate the need for a new elementary school in .,
f the Orange County School System planned to be in service for the
1999-20010 school year.
i
The 1993 technical report adopted by the Board of County
Canmaissioners in connection with the Impact Fee Ordinance, '
projects the need for one elementary school in the Orange: �ounty
School System for the fiscal year 1997-98. also, the County's
1995-2005 Capital Budget projects the construction of one new
elemmentary school in the Orange County School District thrcugho
the year 1999. This need is reflected in the updated Technical
Report adopted by the Board of Commissioners .in May 1995.: iThe .4
impact fee now being collected for new construction in tho! Orange
County School District is based on that projected need. the
upgrade and reuse of the old Stanback Middle School as the,
Hillsborough Elementary School will, at least in part, replace ,
the need for the new elementary school during the 1999-200,,t
fiscal year. As such, the fees collected and now held in' ,the
i
i
I
i
9
Mr., John M. Link, Jr.
Page 2
December 8, 1995
i
Oran County School District Impact Fee Trust can be made
! available for the capital expenses necessary to bring this new
elementary school on line with a minor Impact Fee Ordinance
amendment.
The Impact Fee Ordinance contains, in Section 5C, a 4
limitation on the expenditure of funds from the "public school' ;
imppact. fee trust accounts. " These funds may only be spent asp
follows
i
Funds shall be used for capital costs associated with th4
construction of new public school space, including new !
'buildings or additions to existing buildings where the
expansion is related to new residential growth. Such i
capital' coste include actual building construction; deli ,
engineering, and/or legal fees; land acquisition and sit i
development; equipment and furnishings; infrastructure
improvements; and/or debt service payments and payments !
under leases through which to finance such costs. i
Arguably, the furnishing of and renovations to the old Stanba�k
is ; Middle School could be characterized as "additions to existing..
buildings" or ^infrastructure improvements. " A more likely l
int orpretation, however, is that they would not be either andl '
thit ;additions mean new classrooms and other building additions
and infrastructure improvements means water and sewer type
' improvements. This is an easy fix, however. The first sentence #
of the indented paragraph above can be amended to read:
Funds shall be used for capital costs associated with thii.
construction of new public school space, including new 4
buildings, additions to existing buildings or otherwise
converting existing buildings into new vublic school space
where the expansion is related to new residential growth,
By:adding the underlined language above, the County can solve the i
iimwd ate school conversion problem and be in a position to
handle similar school capital projects needed to accomplish
expansion of school facilities where the expansion is related, to
new residentiai growth.
The ordinance amendment could be done at any time as i
directed by the County Commissioners and following a public
hearing. I can work with Marvin on the public hearing notice, on
short notice. As to your proposed letter to Dr. Harrison, I
think you should mention the need for a minor Impact Fee
Ordinance amendment to accomplish funding the new school
renovation costs with the impact fee and the need for Board of
County Commissioner approval of that amendment.
10
Yx. John M. Link, Jr.
Page 3
j.
December .8, 3.995
II have enclosed a copy of the March 29, 1995 letter that I1'
wrote to the Board of Commissioners responding to the various'
funding proposals made to the Board of Commissioners during the;j
public meetings and hearing held earlier this year. One cif those
proposals was using the Chapel Hill-Carrboro District f
Supplemental Tax for capital. As that memo indicates at ii {
paragraph V, the proceeds of that tax are not available fdr
° • capital. As we discussed in your office on Thursday, this '
limitation on the use of the supplemental tax in all likelihood"j
� can�be changed by an election. I will review the specific !
` ! requirements of such an election as the idea of using the
supplemental tax for the capital needs of the Chapel Hill-� '
Carrboro ,School System is explored.
Very truly yours,
COIN GLXDE= & HARGRAVE, P.C.
i Ge frey E. edhill
Ij
} GEGl lsg
,� i l�q\home3\2inlc.2tr � �
I'
I++r
1
' a
', i
11
LAW OMCSS :e ,
C�pI ENI�4I�t-f GI, DHILL & HARGR.AVE
a>nl o A7>os1 asp L CUMHU.
•;., �`ao�ioias tuutc��wvF`.; ,
129 L 7RYCR1 STRErr KDt K MWAN
P.O.DRAWM 15V JANU L DUMN � +
11111L�L y,NVKTH CAROL24A 22276 DOUGLAS F.T}IORYN
(919)Tai•2196 SAImJII FLT OOL�HtN
FAX 19197 732.7992
July 12, 1995 !
Mr. Marvin Collins
Plan ing Director
Or ge County Planning Department
Ton Office- Box 8181
Hillsborough, North Carolina 27278
Dear Marvin:
Enclosed is a rewrite of Section 6, Credits, of the Counter's
Educational Facilities impact Fee Ordinance. I think this
rewrite more clearly expresses the intent of the County
Commissioners in the Credit section of the Ordinance. As
presently'written it is possible to interpret Section 6 as ;
req{iiring impact fee Credit even where a donation is intended b1r
theland owner. Also,' the rewrite uses the term land owner
rather than developer as a further clarification.
I regard the changes proposed as being fines of
"Clarification. " Nevertheless, they still should go to public
'hearing and I recommend that they do so as soon as possible.
Very truly yours,
CORMMM GLEDHILL Si'B i P.C.
;
i
rey E. ill
GEC,/lsg ,
Encilosure;
xc:' John. M. Link, Jr.
189\1hom3\mcolli15.ltr
i
12
SECTION 6 - CREDITS
Any conveyance of land for a public school site or
construction of new school facilities received and accepted by
Orange County, a municipality located in Orange County, and/or e
Orange County or Chapels Hill-Carrboro School Board from a deve
} be credied
again e p Tc sch- ool Impact tee aue 11 the conveyance or
construction meets the same needs as the public school impact lee
in I rovidin new public school facilities. If the
to receive credit against the amount of the public
s o c es due for such conveyance or construction, e
yee shall, prior to the agreement to convey lnd
for ;or cons c new public school facilities, or the conveyance fhe of
land for or construction of new school facilities, enter into a ee
agreement with the County. The fee agreement shall provide for
establishment: of credits and payment of the fee in a s iftod
manner and time
The value of land conveyed or facilities constructed a
deve&speeet and accepted by the County, municipality�or
school board for purposes of this section shall be determined byjan
appraisal based on the fair market value of the land or facilities
as established by the County. Construction shall be in accordance
with applicable County, municipal, school board, andAM St to
standards. Any land conveyed for credit under this section shill
be conveyed no later than the time at which public school impact
fees are required to be paid. The portion of the public school
impact fee represented by a credit for construction shall be deeded
paid when the construction is completed and accepted for
maintenance or when adequate security for the completion of the
construction has been provided.
leg.\h=e3\eec6.imp
t
i
i
1 ,
i
1
- .MANGE COUNTY, NORTH CAROLIt. 13
APPLICATION FOR CHANGE OF ZONING DISTRICT'
Date :
TO THE BOARD OF COUNTY COMMISSIONERS
ORANGE COUNTY, NORTH CAROLINA
The under•,igned do hereby make application to change the Zoning Atlas of
Orange County as hereinafter requested .
1 . The property is located on the W66t sida of S .R . # Sz
( Street/Road) between S .R . # end
S .R .# It is known as at1.64 Q _, 13 Lock of
Orange County Tax Map - ?,- Township . It has a frontage
of feet and a depth of J%2-feet , and contains
square feet or •S2 acres .
2. It is desired and requested hat the foregoing property be rezoned
from Ate t0 X6'.5
3 .- The -following information has been _ attached . .in__ support of the
application for changing the Zoning Atlas (* – required on alt
applications] .
•s. A fully dimensioned map sit s scats of not lass than one (1) inch
equals one—hundred (100) feet nor more then one (1) inch equals
twenty'- t201 fast- showing°-tre land which is proposed to be
rezoned.
'b. A legal description of the land proposed to be rezoned.
•c. A statement of Justification addressing one or more of the
following:
1) The alleged error in the Zoning Ordinance, if any, which
Y would be corrected by the proposed amendment with a detailed
explanation of such error in the Zoning Atlas and detailed
reasons how the proposed amendment will correct the error.
(2) The changed or changing conditions, if any, in the area or
in the County generally, which make the proposed amendment
reasonably necessary to the promotion of the public health,
safety and general welfare.
'(3) The manner in which the proposed amendment will carry out
the intent and purpose of the adopted Land Use plan or part
thereof.
•(4) ALL other circumstances, factors and reasons which the
applicant offers in support of the proposed amendment
Including, but not limited to, documentation from service
agencies (e.g. fire, police, rescue and utilities agencies)
assuring services provision capability to the development.
d. A list of all individuals, firms or corporations owning property
adjoining or within five hundred (300) feet of the property
soupgt sorr ; zoning is attached. The List is current m• of
(DotaJC) -
I certify that aLL information furnished in this application is accurate
to the best of my knowledge .
Applicant (s) •
Address :
Phone :� _�
14
SCHLEP
L
Y 00
FD
RD.
LO M
1548
Schle
LATTA RD 1.
1550
Coll' RD; 1552 t
MCEY
1.J'l RD. 57 W
"HELPS, 158
SRO S RD..
rararr M— !mm
A EL
KER
KI
57
BURKE
qA 15%
lose
ICK PA
En
nun 4p
LA up
x
Z-1-96 Bobby M. & Lydia E. Crawford 1" 4,000'
15
'
Ac. 31
3.84AC.
^P
CgFF
l _ TAIL OR
450 W
78 7585 2 50 EggE
652.50 140.5
3.92 AC � \
7A /
I I 9384 r /
r �
12.52 AC. / / 237.28'- 7253 9.30AC•
/ 4130 e 1
9 102 168
J
/ / I 3538
If.1503AC•
7481 10.8897AC
16 / e s
/� oo
21.9444 AC. O
/ 38 AC.
/ ^ 17A �
4.6SAC•
5785 , \\� 5753 4 SEE
qr_', ENO 1
148 '
N 8-I i
FY0195.17AC. i
14A
4047
IN,
/ \
j 1 14 \ \eo�7 I 10.34 AC/
Z-1-96 Bobby M. & Lydia E. Crawford 1" = 400'
16
PROPOSED ORDINANCE AMENDMENT
[DRAFT]
REFERENCE: ZONING ORDINANCE
Article 8.8. 14 Special Uses - Temporary Events
(NEW)
Article 4.3 Permitted Use Table
Article 6. 16.17 Additional Requirements for Certain
Permitted Uses (Temporary Events)
Article 22 Definitions
ORIGIN OF AMENDMENT: X Staff Planning Board
BOCC X Public
Other:
EXPECTED PUBLIC HEARING DATE: February 26, 1996
PURPOSE OF AMENDMENT:
To create a new commercial land use category to allow temporary
commercial events such as craft shows, carnivals, festivals,
concerts, etc. that do not typically involve permanent structures
and do not exceed seven (7) days in a thirty (30)-day period or
fifty (50) days per year.
IMPACTS/ISSUES:
Currently there are no provisions in the Zoning Ordinance for
temporary uses other than yard sales and fund raising activities
which are permitted in all residential districts for a maximum of
two (2 ) days per month. Temporary use of a mobile home for
custodial care and temporary/portable buildings are permitted in
some districts through a Class B Special Use Permit.
The proposed amendment creates a commercial/service use category
called "Temporary Events" . Examples of this kind of use are craft
shows, carnivals, festivals, concerts, medical or veterinary
clinics, and outdoor social events hosted by a business such as a
restaurant or caterer.
Temporary events such as those described above would not be
considered a principal use when it takes place at a site normally
associated with the activity. For example, a festival held at a
park, a reception or picnic held on church grounds, or a veterinary
clinic conducted outside an animal hospital would be considered
accessory uses to the principal use on the site.
Application in Commercial Districts
The proposal would allow temporary events for less than 300 people
17
in commercial districts as a principal use, or in conjunction with
a permanent principal use, with site plan approval and a zoning
compliance permit. Prior to approving the site plan or issuing a
zoning compliance permit for any event, the proposed activity would
be reviewed in accordance with the specific criteria of Article
6. 16. 17 (Additional Requirements for Certain Permitted Uses -
Temporary Events) .
Events expected to attract 300 people or more would require
approval of a Class A Special Use Permit by the Board of
Commissioners.
Application in Residential Districts
In residential districts temporary events for less than 300 people
would require a Class B Special Use Permit. Events planned for 300
people or more would require a Class A Special Use Permit. A new
Article 8.8. 14 is proposed in order to specify additional
information required and standards of evaluation for temporary
events.
Approval of Special Use Permit
Application requirements and standards of evaluation for temporary
events are proposed to insure that adverse impacts are minimized
and that public safety is not compromised. The Special Use Permit
is valid for one year and describes generally the use, a maximum
number of events per year, maximum periods of operation, maximum
number of participants, and typical activities. A typical site plan
is reviewed with the Special Use Permit indicating access,
utilities, parking, and other use areas.
The zoning compliance and Special Use permits are site specific.
Therefore, if the same event is proposed by the same applicant at
different sites, individual permits must be obtained.
Approval of Individual Events
A specific site plan for each event must be submitted for review by
the Planning Staff and must be accompanied by letters from the
Orange County Health Department, the Sheriff's Department, and the
Fire Marshal regarding sanitation and safety issues. A written
description of the event is required to include the maximum number
of people expected to attend, the frequency of the event, hours of
operation, method and adequacy of sewage disposal, recycling and
waste disposal, access, parking, lighting, and signage.
18 +
PROPOSED AMENDMENT:
Article 22 Definitions
Temporary Event (NEW) A commercial activity that
typically does not involve permanent structures,
and does not exceed seven (7) days in a thirty
(30) -day period or more than fifty (50) days per
year. Examples of temporary outdoor events are
craft shows, carnivals, festivals, concerts,
medical or veterinary clinics, and sites operated
by businesses engaged in hosting outdoor social
events such as picnics or receptions sponsored by a
restaurant or caterer.
Article 4.3 - Permitted Use Table
(attached)
Article 8.8.14 Temporary Events (NEW)
(less than 300 people - Class B Special_ Use
300 people or more - Class A Special Use)
8.8.14.1 Additional Information
In addition to the information required by
Subsection 8.2 and 8.8, the following information
shall be supplied as part of the application for
approval of this use:
a) A written description of the exact type of
event planned, the maximum number of
participants, the frequency of the event,
anticipated dates and hours of operation,
method and adequacy of sewage disposal,
recycling and waste disposal, access, parking,
lighting, and signage;
b) A site plan drawn to scale showing the
boundaries of the area to be used for the
event, and the locations of access points,
parking, service areas, activity areas,
restrooms, solid waste disposal/recycling
facilities, lighting, and signage;
C) Written comments from the Orange County Health
Department, Division of Environmental Health
regarding the adequacy of plans restroom
facilities and food preparation/handling
arrangements;
d) Written comments from the Orange County Fire
Marshal and Sheriff's Department regarding the
19
adequacy of parking, access, or other factors
related to public safety.
8.8.14.2 Standards of Evaluation
a) Lot size shall be adequate to accommodate all
proposed activities including safe vehicular
and pedestrian circulation;
b) The proposed activity will occur on no more
than seven days in a 30-day period, nor more
than 50 days per year.
C) Signs associated with the use are allowed only
while the event is in progress and shall not
exceed one sign per event with a maximum area
of sixteen ( 16) square feet, and a maximum
height of six (6) feet. Other standards of
Article 9 shall also apply.
d) The Special Use Permit shall include a
requirement that the following information be
presented to the Planning within a specified
number of days prior to each event:
1. Environmental Health approval of water
supply and wastewater disposal;
2. A copy of notification of the upcoming
event sent to the Fire Marshal and
Sheriff's department; and
3. A description of the proposed event,
indicating that the event will not exceed
any parameters such as hours of
operation, anticipated attendance, or
other characteristics addressed in the
Special Use Permit.
e) The Special Use Permit shall be valid for no
more than one year.
Article 6.16 - Additional Requirements for Certain Permitted Uses
6.16.17 Temporary Events
a) The application shall include a written
description of the exact type of event
planned, the number of participants, the
frequency of the event, dates and hours of
operation, method and adequacy of sewage
disposal, recycling and waste disposal,
access, parking, lighting, and signage;
20
J
b) The site plan shall be accompanied by written
approval from the Orange County Health
Department, Division of Environmental Health
regarding water-supply and wastewater
disposal;
C) The site plan shall have written approval from
the Orange County Fire Marshal;
d) The applicant shall submit a copy of
notification sent to the Orange County
Sheriff's Department stating the type of
event, number of participants, date(s) and
hours of operation, and emergency contact
information. A location map must be attached
to the notice provided to the Sheriff;
e) Lot size shall be adequate to accommodate all
proposed activities including safe vehicular
and pedestrian circulation;
f) The proposed activity will occur on no more
than seven days in a 30-day period, nor more
than 50 days per year; and
g) Signs associated with the use are allowed only
while the event is in progress and shall not
exceed one sign per event with a maximum area
of sixteen ( 16) square feet, and a maximum
height of six (6) feet. Other standards of
Article 9 shall also apply.
ORDINANCE REVIEW COMMITTEE:
PLANNING BOARD:
BOCC:
21
M ti
D D
rl
a a
a I o
a a
W l Re r o ice — e e me «a a as
I . i . I I
< .
I < i 1 • .,
w I -T Cal
In -6 'm u
ra 0 11* .4
dc dc
E E
z
• lit M M C c
d d C ( CG Q
�I < C
rw N N •
N N Q
S C C
3 u 0 da 4
s < m
m 4
I mi < m Q
C (
17' < C Q
X C m
I O 'O �+
• t H Y � s
o L u c a m
A c oc Y
Y w Y -•-• o�
in
• C Y Y 0
L r-4
O
O ~.
AJ
eo
4,
tnmt►mtoo� �+� O L x �.
to f m l l l a l m t L 7 V 'A 9
u A m c
U
A
O u S
wn 7 1.�to r -w [7 3 Y A L C- Y : ..► V
4+ N u c .. c
L
A c
L u A
0 0 o m- A LO jw
Y V V .2— .4 0 �L>+
o�J
•+ 7+ O' Q� Y O
a— e r 10 D v
Ai u u u iL A A
Y Y O � V L L 'O L .r u 004 A E w E �
O 0 O 7 m O m Y Y—u Y ; IW
\ E O D O N �—
N N N N S S SD c U 0 ~
9
Y to �o n m a o •. •• r n .► to 10 r :� 5
E �n in �n on h to v+ u+ �n ,^
t N N N N N N N N N N N N N IA )
A-19 .�:z-
t
22 ,
PROPOSED ORDINANCE AMENDMENT
ORDINANCE: ZONING ORDINANCE
REFERENCE: Article 6.23. 11 Watershed Protection Overlay
Districts (Administration)
ORIGIN OF AMENDMENT: X_ Staff Planning Board
BOCC X Public
Other:
STAFF PRIORITY RECOMMENDATION: X_ High Middle Low
Comment:
PUBLIC HEARING DATE: February 26, 1996
PURPOSE OF AMENDMENT: To authorize the Board of Adjustment to
grant variances to allow the use of
septic easements in watersupply
watersheds.
IMPACTS/ISSUES: Article 6.23.8 of the Zoning Ordinance prohibits
the use of off-site septic easements in all water
supply watersheds. Article 6.23.11 provides for
the Board of Adjustment to grant minor variances
of requirements of the watershed protection
overlay districts in accordance with Article
2 .3.6.
Article 2.3.6 Application of the Variance Power
authorizes the Board of Adjustment to grant
variances related to dimensional requirements.
The general variance power does not extend to
regulations pertaining to use.
On November 13, 1995, the Board of Adjustment
considered a variance request by Danny Freshwater
for a septic easement. The Freshwater property
contains 10 acres, Because the plat was exempt
from subdivision regulations, soil suitability
was not determined prior to creation of the lot.
It has been determined by Environmental Health
that the lot does not contain soils suitable for
septic disposal. A suitable site was identified
on an adjacent 10-acre parcel which has already
been developed with a single-family residence.
The owner of that parcel agreed to grant a septic
easement, but would not agree to a recombination
which would allow the suitable soils to be
incorporated into the lot owned by Mr.
Freshwater.
The Freshwater parcel cannot be developed unless
wastewater disposal can occur on an easement on
the adjacent parcel. Under current regulations,
23
Y
a variance cannot be granted because it does not
involve a dimensional requirement of the Zoning
Ordinance. The Board of Adjustment delayed
action on the November 13, 1995 variance request
for eight months, to allow time for consideration
of an amendment to the Zoning Ordinacne to
address this issue.
The proposed amendment would give the Board of
Adjustment explicit authority to grant a variance
to allow septic easements in water supply
watersheds in cases which meet other findings
necessary for variance approval.
EXISTING ORDINANCE PROVISIONS AND PROPOSED AMENDMENT:
6.23.11 ADMINISTRATION
a) Appeals
Decisions of the Zoning Officer in the
implementation of this Article may be
appealed to the Orange County Board of
Adjustment in accordance with Article 2.3.7
of this Ordinance.
b) Variances
Develepment aet-i-vitre Mainor
variances for dimensional requirements and
for the use of septic easements may be
approved by the Board of Adjustment in
accordance with Article 2 .3.6 of this
Ordinance.
A variance which results in one or more of
the following shall be considered a major
exemption, requiring approval by the
Environmental Management Commission.
1. the complete waiver of a management
requirement of the Environmental
Management Commission;
2 . the relaxation of any management
requirement that takes the form of a
numerical standard to less than 90% of
the minimum required by State-mandate the
Environmental Management Commission; and
3. the relaxation of any management
requirement that applies to a development
project requiring construction of a
detention pond.
A description of each project receiving a
variance and the reason for granting the
24
Y
variance shall be submitted to the Commission
on an annual basis.
All other local governments having
jurisdiction within the watershed area and
the entity using the water supply for
consumption shall be notified of the proposed
exemption.
ORDINANCE REVIEW SUBCOMMITTEE:
PLANNING BOARD REVIEW:
BOCC REVIEW:
25
PROPOSED ORDINANCE AMENDMENT
ORDINANCE: ZONING ORDINANCE
REFERENCE: Article 8.2 Special Uses
ORIGIN OF AMENDMENT: Staff Planning Board
BOCC Public
_X Other: County Attorney
STAFF PRIORITY RECOMMENDATION: X_ High Middle Low
Comment:
PUBLIC BEARING DATE: February 26, 1996
PURPOSE OF AMENDMENT: To amend Special Use provisions related
to expiration, validity, and approval
actions for Special Use Permits,
IMPACTS/ISSUES: In the attached letter dated December 18, 1995,
the County Attorney recommended several changes
to the Zoning Ordinance provisions pertaining to
Special Uses.
It is proposed that the following standard
requirements be explicitly stated in each Special
Use Permit:
• that the permit will become null and void if
any of the conditions are held invalid or
void; and
• That the permit will automatically expire
within 12 months of approval if the use has
not commenced or if construction has not
commenced and proceeded, unless a time
extension is approved.
In addition, the proposed amendment involves a
change to Article 8.4.7, which relates to action
on Special Use Permits. The proposed amendment
would eliminate the requirement that a summary of
evidence supporting the action be included as a
part of the action itself.
EXISTING ORDINANCE PROVISIONS AND PROPOSED AMENDMENT:
ARTICLE 8 . - SPECIAL USES
8.1 It is the intention of the Board of County Commissioners
to create, and from time to time amend, a list of Special
Uses within Article 4 Permitted Use Table which, because
of their inherent nature, extent and external effects,
require special care in the control of their location and
methods of operation. The Board of County Commissioners
26
is aware of its responsibility to protect the public
health, safety and general welfare and believe that
certain uses which now or in the future may be included
on this list are appropriately handled as Special Uses,
subject to review in relation to general and specific
requirements, rather than as uses permitted by right.
In addition to the listing of such uses, the Board of
County Commissioners intends that the general standards,
established in Section 8.2. 1, and the more specific
requirements in 8.2.2, established below, shall be used
by the Board of Adjustment, the Planning Board and the
Board of County Commissioners, as appropriate, to direct
deliberations upon application or the approval of Special
Uses. It is the express intent of the Board of County
Commissioners to delineate the areas of concern connected
with each Special Use and to provide standards by which
applications for such Special Use shall be evaluated.
8.2.1 Before any application for a Special Use shall be
approved:
a) The applicant shall have the burden of
establishing, by competent material and substantial
evidence, the existence of the facts and conditions
which this ordinance requires for approval; and
b) The Board shall make written findings certifying
compliance with the specific rules governing such
individual Special Use and that the use, which is
listed as a Special Use in the district in which it
is proposed to be located, complies with all
required regulations and standards including the
following general conditions:
( 1) The use will maintain or promote the public
health, safety and general welfare, if located
where proposed and developed and operated
according to the plan as submitted;
(2) The use will maintain or enhance the value of
contiguous property (unless the use is a
public necessity, in which case the use need
not maintain or enhance the value of
contiguous property) ;
(3) The location and character of the use, if
developed according to the plan submitted,
will be in harmony with the area in which it
is to be located and the use is in compliance
with the' plan for the physical development of
the County as embodied in these regulations or
in the Comprehensive Plan, or portion thereof,
adopted by the Board of County Commissioners;
and including all applicable provisions of Articles
4, 5, 6, 7, 9, 10 and 12 of this Ordinance, unless
27
greater or different regulations are contained in
the individual standards for the specific Special
Use. The applicant shall have the burden of
establishing by competent material and substantial
evidence in the form of testimony, exhibits,
documents, models, plans and the like that the
application meets the requirements for approval of
a Special Use.
8.2.2 Where the Board finds compliance with the general
standards, specific rules governing the specific use
and that the use complies with all required regulations
and standards the application must be approved unless the
Board shall also find, in some specific manner, that:
The use will not maintain or promote the public
health, safety and general welfare, if located where
proposed and developed and operated according to the plan
as submitted;
Those opposing approval of the application on the grounds
that the use will not promote the public health, safety
and general welfare shall have the burden of
establishing, by competent material and substantial
evidence, the specific manner in which the proposed use
does not satisfy the requirements for approval of the
application for a Special Use.
8.2.3 FxksrrR; EB
The Special Use Permit shall include a statement that If
any condition of a Special Use Permit shall be held
invalid or void, then the permit itself shall be void and
of no effect.
8.2.4 In addition to the general standards stated in 8.2 the
following specific standards shall be addressed by the
applicant before the issuance of a Special Use Permit:
a) Method and adequacy of provision of sewage disposal
facilities, solid waste, and water.
b) Method and adequacy of police, fire and rescue
squad protection.
c) Method and adequacy of vehicular access to the site
and traffic conditions around the site.
d) Other use specific standards are set forth in
Section 8.8.
8.2 .5 It shall be stated in the Special Use Permit that the
Permit shall automatically expire within twelve (12)
months of the date of approval if the use has not
commenced or construction has not commenced or proceeded
28
unless a timely application for extension of this time
limit is approved by the Board of County Commissioners as
Provided in 8.4. 11 of the Orange County Zoning Ordinance
8.4.7 Action On The Application
After completion of the public hearing, the Board of
County Commissioners or the Board of Adjustment, as
appropriate, shall take action upon the application.
This action shall be one of the following:
a) Approval;
b) Approval with conditions attached;
C) Denial.
in eveEy ease, the aetlee of tyre—BeaEd shall laelude
en the appileatlen.
**********************************
ORDINANCE REVIEW SUBCOMMITTEE:
PLANNING BOARD REVIEW:
BOCC REVIEW:
29
I.Aw OFFICES
COLEMAN, GLEDHILL & HARGRAVE
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHI L
DOUGLAS HARGRAVE
129 E.TRYON STREET
P.O.DRAWER 1529 KIM K STEFFAN
HILLSBOROUGH,NORTH CAROLINA 27278 JANET B.DUTTON
(919)732-2196 DOUGLAS P.THOREN
FAX(919)732-7997 SAMUEL ELY COLEMAN
December 18, 1995
Mr. Marvin Collins
Planning Director
Orange County Planning Department
Post Office Box 8181
Hillsborough, North Carolina 27278
RE: Special Use Permits
Dear Marvin:
While recently reviewing a special use permit or two, it
occurred to me that Orange County should condition its special
use permits such that if any condition is determined to be
invalid, the whole permit is invalid. I think it will also be
useful if special use permits describe the construction timing
requirements of the Ordinance as a condition of approval. I
recommend the following language be used and that each special
use permit approval 'be conditioned as follows:
# If any of the conditions affixed hereto or any part of this
permit shall be held invalid or void, then this permit shall
be void and of no effect.
# This permit shall automatically expire within twelve (12)
months of the date of its approval if the use has not
commenced or construction has not commenced and proceeded
unless a timely application for extension of this time limit
is approved by the Board of County Commissioners as provided
for in Section 8.4. 11 of the Orange County Zoning Ordinance.
These conditions are fairly standard for special use
permits. At some point in time I have talked about their need
with you or perhaps some members of your staff. I had overlooked
documenting those conversations and providing the needed
language.
30
Mr. Marvin Collins
Page 2
December 18, 1995
Also, Section 8.4.7 of the Zoning Ordinance, relates to
action on an application for a special use permit. That action,
by either the Board of County Commissioners in the case of a
Class A special use permit or the Board of Adjustment in the case
of a Class B special use permit, must "in every case, . . . include
a summary of the evidence supporting the action taken . . . on the
application. " In the context of a special use permit application
some time ago this language was removed from the Board of
Adjustment's Rules of Procedure. Enclosed is a copy of my March
7, 1995 letter to you about that. The language indicated above
should be deleted from the Ordinance for the reasons stated in
that letter. In my March 7, 1995 letter I mistakenly indicated
that the problem language only applies to the Board of
Adjustment. As you can see, Section 8.4.7 applies equally to the
Board of AW nstment and Board of Commissioners. And the problem
can only be fixed with an Ordinance revision.
Very truly yours,
COLEMAN GLEDHILL & HARGRAVE, P.C.
y E. dhill
GEG/lsg
Enclosure
1sg\home3\mco11sup.Itr
• 31
LAW OFFICES
COLEMAN, GLEDHILL & HARGRAVE ALONZO BROWN COLEMAN,IR.
A PROFESSIONAL CORPORATION GEOFFREY E.GLEDHILL
DOUGLAS HARGRAVE
129 E.TRYON STREET KIM K.STEFFAN
P.O.DRAWER 1529
)ANSI B.DUTTON
HILLSBOROUGH,NORTH CAROLINA 27278
(919)732-2196 DOUGLAS P.THOREN
FAX(419)732.7497
SAMUEL ELY COLEMAN
March 7, 1995
Mr. Marvin Collins
Planning Director
Orange County Planning Department
Post Office Box 8181
Hillsborough, North Carolina 27278
RE: Special Use Permits
Dear Marvin:
As you know, of late I have been busy with appeals of Board
of Adjustment decisions . That activity has alerted me to what I
see as a source of ambiguity in the special use permit
application process and the need to modify the Board of
Adjustment's Rules of Procedure.
Presently Section 8 . 2 . 1 of the Zoning Ordinance places the
burden of proof on the applicant to prove the general conditions
listed as ( 1) , (2) and ( 3 ) under subsection b) . Section 8 . 2 . 2
then purports to shift the burden of proof on those same matters
to opponents of the special use permit. I think this process
should be revised.
The burden should continue to be the applicants to prove
Section 8 .2 . 1 .b, ( 1) , (2) and ( 3) . Opponents of an application,
on the other hand, should have no burden with respect to the
matters contained in Section 8 .2 .2(b) and (c) . Opponents of an
application will, of course, have the opportunity to present
evidence on the matters contained in those subsections .
Enclosed is a rewrite of Section 8 .2 . 2 with highlighted
(new) and cross through (eliminated) language that accomplishes
this change. My reason for recommending that this change be made
is to make it absolutely clear that the applicant has a burden to
make a showing with respect to value of contiguous property and
that the use must be in compliance with the County's "general
plan" for development. These two items are fact specific and can
be readily established by evidence available to the applicant at
r
32
Mr. Marvin Collins
Page 2
March 7; 1995
the application stage. On the other hand, although the applicant
can be required to show in general that the use will maintain or
promote the public health, safety and general welfare, the
applicant cannot be expected to anticipate every specific health,
safety and welfare problem. Proof of any such specific problem
should be the responsibility of opponents .
The best statement of the principles involved here is that
contained in Brough & Green, The Zoning Board of Adjustment, at
pages 83-84 (2nd ed. Institute of Government, UNC-CH, 1984) .
These principles were recognized and approved in a recent North
Carolina Court of Appeals case, Signorelli v. Town of Highland,
93 N.C.App. 704, 379 S .E. 2d 55 ( 1989) . In that case, the
applicant sought a special use permit. The permit was denied and
the Superior Court affirmed on the basis that the "petitioner
failed to meet the burden of producing evidence and the burden of
persuasion to allow the board to find in the petitioner's favor. "
379 S .E . 2d at 57 . The Court of Appeals ' decision affirming the
Superior Court in Signorelli contains the first explicit
recognition in North Carolina case law that "the evidentiary
burden in special use permit proceedings can shift from the
applicant to those who oppose the application. " Id.
The Signorelli case is interesting also for its recognition
that the applicant has some burden on the issue of public health,
safety and general welfare, notwithstanding the caution on that
point in the passage from the Brough and Green publication set
out above. The Signorelli court concluded that the applicant had
established a prima facie case because his application
demonstrated compliance with the relevant specific requirements
and therefore the question was whether the burden of showing that
the proposed use would materially endanger the public health and
safety had been met. The court stated that there was evidence
that the plans were not specific enough for the board to properly
decide whether or not the proposed use would materially endanger
the public health and safety. In particular, the court noted
that the board had found that:
. . .no set of plans or specifics were submitted regarding
hours of operation, number of machines and tables , or
methods of supervision so that protection of the public
welfare against traffic and noise difficulties was not
assured.
Id. , 379 S .E . 2d at 58 . The court then concluded that "a plan
lacking in essential details and specifics potentially threatens
health and safety no less than a detailed plan which is
antithetical to the public and the public interest. " Id. , 379
S .E. 2d at 59 . In other words , the evidence before the board on
r
33
Mr. Marvin Collins
Page 3
March 7 , 1995
the issue of public health and safety was that there was no
evidence before the board on this issue.
I recognize that all of this is perhaps legalistic to a
fault. However, I think my analysis is correct and I wanted to
share it with you if for no other reason than to test your quasi
lawyering skills and set down in writing the basis for the
ordinance change, together with an analysis that will help in its
implementation when adopted.
I have also enclosed a copy of a recent North Carolina Court
of Appeals decision in the case of Vulcan Materials Company v.
Guilford County Board of County Commissioners, 115 N.C.App. 319,
444 S.E . 2d 639 . That case approves the use of a special use
permit standard in the Guilford County Zoning Ordinance which may
be helpful to Orange County and which could be an addition to the
third special use permit general standard in the Orange County
Zoning Ordinance. That standard is that the special use be "in
harmony with the area in which [it] is to be located. . . . " Id. ,
444 S.E . 2d at 642 . As you can see by the analysis of the court
in the enclosed opinion, that standard permitted a denial of an
industrial use (rock quarry) when competent, material and
substantial evidence was presented that the use contemplated was
in fact not "in harmony" with the surrounding residential and
agricultural land uses, notwithstanding the general conformity
implicit in the fact that this special use is one permitted in
the agricultural/residential zoning district. I commend this
approach and have included language in the rewrite of Section
8 . 2 . 1 which will accomplish it for your consideration.
Finally, I have reviewed again the Orange County Board of
Adjustment's Rules of Procedure and recommend the changes
enclosed. These recommended changes arise out of one or more
North Carolina Appellate Court decisions . The most important
proposed change is to Section 3 (e) . One North Carolina Court of
Appeals decision remanded a board of adjustment decision because,
among other reasons , the chair failed to summarize the evidence
presented at the special use permit hearing and provide the
parties an opportunity to make objections or corrections before
the board of adjustment made its decision. Cardwell v. Forsyth
County Zoning Board of Adjustment, 88 N.C.App. 244, 362 S .E.2d
843 ( 1987 ) , rev. denied 321 N.C. 742 ( 1988) . It seems to me that
no matter how helpful such a practice is, it need not be the
basis for overturning a board of adjustment decision. In that
regard, there is no comparable requirement or practice by the
Board of Commissioners in its special use permit procedures .
Also, eliminating the requirement that the chair of the board of
adjustment summarize evidence does not mean that the chair cannot
do this if it is the practice.
. 1
34 I
Mr. Marvin Collins
Page 4
March 7 , 1995
I 'll be glad to review all of this with you. I would hope
that an ordinance amendment consistent with this letter could be
considered by the Board of Commissioners at the next scheduled
regular quarterly public hearing and the Board of Adjustment
could consider the Rules of Procedure changes as soon as
practical .
Very truly yours,
COLEMAN; GLEDHILL & HARGRAVE, P.C.
i
Geo rey E . Gledhill
GEG/lsg
Enclosures /
1sg\home3\mco11in4.1tr
35
Revisions to Article 8 - Special Uses
8 .2. 1 Before any application for a Special Use shall be
approved:
a) The applicant shall have the burden of
establishing, by competent material and substantial
evidence, the existence of the facts and conditions
which this ordinance requires for approval; and
b) The Board shall make written findings certifying
compliance with the specific rules governing such
individual Special Use and that the use, which is
listed as a Special Use in the district in which it
is proposed to be located, complies with all
required regulations and standards including the
following general conditions :
Amended ( 1) The use will maintain or promote the public
1/8/90 health, safety and general welfare, if located
where proposed and developed and operated
according to the plan as submitted;
( 2 ) The use will maintain or enhance the value of
contiguous property (unless the use is a
public necessity, in which case the use need
not maintain or enhance the value of
contiguous property) ;
a�:c6rding t� the plan submitted f
is C booateci and the use is iri"compl' ance
with` t2 e. general "*- pYan for the physical
development of the County as embodied in these
regulations or in the Comprehensive Plan, or
portion thereof, adopted by the Board of
County Commissioners ;
and including all applicable provisions of Articles
4, 5, 6 , 7, .9 , 10 and 12 of this Ordinance, unless
greater or different regulations are contained in
the individual standards for the specific Special
Use. It shall be the responsibility of the
applicant to present evidence in the form of
testimony, exhibits, documents, models, plans and
the like to support the application for approval of
a Special Use.
8.2.2 Where the Board finds a--pre der-anee—ef evidence to
zndleate compliance with the general standards, specific
rules governing the specific use and that the use
36
complies with all required regulations and standards the
application must be approved unless the Board shall also
find, in some specific manner;;; that:
Amended a+ The use will not maintain or, promote the public
1/8/90 health, safety and general welfare, if located
where proposed and developed and operated according
to the plan as submitted;
b) The are will net maintain er- enhanee the value eE
neee-s's-i-ty, raw}}eh ease the-use:need net .., :.,+ ; .
6E enhanee-the value of en"> g eus ru-repeEtyl i
e-j—The-use is Bret-ift eempl}agree-with the-genes e
feE the—physieal develepmept ef the Geunty as
eared ift this= regula-tiens ems---she
GempEe Tenslve-Plan,-r erg „rte-TheEPer.- adepted by
Those opposing approval of the application on the grounds
that the use will not promote the public health, safety
and general welfare will net--maintain e-;=-en-hanee-the
value ef r�is .. Mr
7 L r^L 1 r
the-genera-plans feE the phyeleal develepment ef-the
Eeunty shall have the burden of establishing, by
competent material and substantial evidence:.,:; the specific
manner in which the proposed use does not satisfy the
requirements for approval of the application for a
Special Use.
1sg\home3\art8.amd
F
37
VI. Appeals and Applications
B. Procedure for Filing Appeals atlbe < '' a ? orie
::- -----:A- p..........:................:......
Amended No appeal shall be heard by the Board unless notice
6/11/90 thereof is filed within thirty (30) days after the
decision, determination or directive was made by the
Zoning Officer and record of that action filed in the
office of the Zoning Officer. No appeal t
Or
ppz shall be considered b y the Board
lessa
compl`et'ed"`application is received. All applications for
hearings shall be filed with the Secretary, or with the
Zoning Officer, who shall act as Secretary for the Board
in receiving this notice. All applications shall be made
upon the form furnished for that purpose, and all
required information shall be provided thereon before an
appeal or an application shall be considered as having
?:iYJ;:!;i'^:::1i;}}i}�:;tn{(::j;��i':i:'Ciiii::ti..iiv,{:Y•..i:!iii:'.i"!i:f:<:.
been f i ;.:. :e,..;:.:„.:;::<.;:.:::::.::::;:::;:«::h:<;;::«::.;>:;:.:;:..:;::.:::v::.>::>:
led. Any
:.••:•.:nn:•vim.v::. .�:...:.:••.Lpii�iY.:i::ii}i.�%Ji}i::4�i ::n:�:::is2i:iviii�.isisiiij::i�i::iii:i:r:iii::?ii:i:ii..
Ee s ent—e f-the--area R f ;z A � �s d-re r"e may appeal
from any order or act of the Zoning Officer pertaining to
enforcement of the Zoning Ordinance.
C. Hearings
3 . Conduct of Hearing
Any party may appear in person or by agent or by
attorney at the hearing. The order of business for
each hearing shall be as follows :
(e) the—chair shall summan-4se the ev=denee whien
has been presented, giving the par-ties an
eppert pity to maIee ebjeetlens ere '-
Witnesses may be called and factual evidence
may be submitted, but the Board shall not be
limited to consideration of such evidence as
.........::.. ...:.......
would be admissible in a court of law
ac <: > .•:
it.:><:>:,::;:::,..,..>;::.;-::AI
view"'the premises and obtain additional facts
in the matter before arriving at a
determination of the case.
1sg\home3\vibbdad.doc
38 -
PROPOSED ORDINANCE AMENDMENT
ORDINANCE: ZONING
REFERENCE: ARTICLE 23. VIOLATIONS, PENALTIES AND REMEDIES,
Section 23.2 Penalties, a) Criminal Action
ORIGIN OF AMENDMENT: Staff Planning Board
X BOCC Public
Public
STAFF PRIORITY RECOMMENDATION: _X_ High Middle Low
PUBLIC SEARING DATE: February 26, 1996
PURPOSE OF AMENDMENT: To raise the maximum fine for criminal
violation of the Zoning Ordinance from
$50. to $500.
IMPACTS/ISSUES: The Orange County Zoning Ordinance provides
for four types of action which may be taken
by the County to abate zoning violations or
non-compliance with zoning requirements.
These are:
a) Criminal Action
b) Civil Penalty
C) Injunction and Abatement
d) Stop Work Orders
Assessing Civil Penalties and Posting Stop
Work Orders are the most commonly used
remedies to correct violations after working
with property owners to no avail. Taking
criminal action in the courts is not often
used, but when it is, it is important that
the remedy be effective. The present maximum
$50.00 fine upon conviction limits the
effectiveness of the criminal remedy.
Orange County has the authority to increase
the maximum fine to $500.00 by so providing
in its Zoning Ordinance.
Existing Provision for Criminal Action in the
Orange County Zoning Ordinance
Article 23. Violations, Penalties and
Remedies of the Orange County Zoning
Ordinance is quoted in the following:
39
23.2 Penalties
a) Criminal Action:
Any person, firm or corporation who
violates the provisions of this
Ordinance or fails to comply with any of
its requirements shall, upon conviction,
be guilty of a misdemeanor and shall be
punished as provided in G.S. 14-4.
Although not specifically stated, Section
23.2 limits the amount of maximum fine to
fifty dollars ($50.00) , by default.
Chapter 14 of the North Carolina General
Statutes provides:
S14-4. Violation of local ordinances
misdemeanor. (Underlining added for emphasis)
(a) Except as provided in subsection (b) , if
any person shall violate an ordinance of a
county, city, town or metropolitan sewerage
district created under Article 5 of Chapter
162A, he shall be guilty of a Class 3
misdemeanor and shall be fined not more than
five hundred dollars ($500.00) . No fine shall
exceed fifty dollars ($50.00) unless the
ordinance expressly states that the maximum
fine is greater than fifty dollars ($50.00).
Proposed Amendment
23.2 Penalties
a) Criminal Action:
Any person, firm or corporation who
violates the provisions of this
Ordinance or fails to comply with
any of its requirements shall, upon
conviction, be guilty of a ?<
misdemeanor and shall be >:<.
<. s
provided